Court Backs NLRB Adoption of Notice Rule But Blocks Board Enforcement of Sanctions

With an emphasis on practical strategies to improve productivity and performance, and limit potential liabilities, Bulletin to Management™ concisely analyzes new developments in employment and human resources management.

By Lawrence E. Dubé  

The U.S. District Court for the District of Columbia held March 2 that the National Labor Relations Board had statutory authority to adopt an August 2011 regulation that will require most private sector employers to post a notification of employee rights under federal labor law (Nat'l Ass'n of Mfrs. v. NLRB, D.D.C., No. 11-cv-1629, 3/2/12).

The court upheld the rule, which was published Aug. 30, 2011 (62 BTM 273, 8/30/11), against challenges brought by the National Association of Manufacturers, National Right to Work Legal Defense and Education Fund Inc., Coalition for a Democratic Workplace, National Federation of Independent Business, and several small businesses.

Finding that the National Labor Relations Act provides the board a “broad, express grant of rulemaking authority,” Judge Amy Berman Jackson rejected claims that NLRB's decision to require the posting was arbitrary and capricious.

But Jackson found that two portions of the rule may not be enforced by NLRB. She concluded that the board exceeded its statutory authority in promulgating a provision that would treat any failure to post the required notice as an unfair labor practice under the act. She also held that a provision tolling the NLRA's statute of limitations in any case at a jobsite where an employer failed to post the mandated notice was inconsistent with the language of the statute.

The court rejected a request by several plaintiffs that Jackson rule on the validity of President Obama's January recess appointments of three NLRB members. Noting that the notice posting rule was adopted months earlier by a “quorum of undisputedly duly authorized members,” she said the recess appointment controversy had “absolutely no bearing”on her consideration of the rule.

The rule is set to take effect April 30. A second challenge to the rule is pending in the U.S. District Court for the District of South Carolina.

Text of the opinion on the NLRB rule may be accessed at http://op.bna.com/dlrcases.nsf/r?Open=ldue-8rznuk. The court's order on summary judgment is available at http://op.bna.com/dlrcases.nsf/r?Open=ldue-8rznvg.